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Abortion Clinic 'Buffer Zone' Case Revived by 3rd Circuit

By Jonathan R. Tung, Esq. on June 03, 2016 | Last updated on March 21, 2019

The Third Circuit has revived a controversial buffer zone free speech case that challenged Pittsburgh's local ordinance establishing a 15-foot zone around abortion clinics. The zone was created to provide easier access for patients seeking to enter clinics without being verbally accosted by protesters and pro-life advocates.

It was not even a close call as the circuit voted 3-0, saying that protesters had a valid cause of action to pursue a suit against the city on theories that their free speech rights were violated under the Constitution.

All the Requisite Bar Exam Language

The circuit court quickly inserted the applicable time-manner-place language in its opinion and ruled that a dismissal of the case would be improper without at least a demonstration of "serious consider[ation]" of "substantially less restrictive alternatives that would achieve the city's legitimate, substantial, and content-neutral interests." Whatever that consideration might be, it certainly will be less than the consideration given to the content of what demonstrators have to say.

The ruling reverses the lower court judge's refusal to issue an injunction in the matter following his finding that the protester's rights to free speech were not "effectively stifled."

Times Have Changed

This does not mark the first time the law has been challenged. In 2009, the very same circuit court dismissed a 2009 suit that challenged the law. But this time, the circuit said a different analysis might be required in light of SCOTUS' 2014 striking down of a 35 foot buffer zone in Massachusetts in the case of McCullen v. Coakley.

The Zone

The ruling in McCullen seems to almost set a potential boundary zone between the zone that was originally envisioned by the Pittsburgh legislature and that zone which was struck down by the Supreme Court.

The Supreme Court struck down the 35 feet buffer zone in McCullen, finding that other less speech-restrictive alternatives were available that could have been employed in place of such a large safe-zone for abortion clinic patients. But as the zone gets smaller -- by basically half -- the analysis will end up in one of two ways. First, a circuit ruling that effectively no zone is acceptable, an almost impossible result, or that some buffer is acceptable as a restriction on speech. In fact, as the zone gets smaller, the issue becomes less a time-manner-place restriction and more a content based issue.

So, what will it end up being? About 15 and definitely less than 35? Or none at all? Hopefully we will find out soon.

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